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The Latest On HB2

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Last night, the ongoing saga of abortion rights in Texas made national—and, indeed, international—news when the U.S. Court of Appeals for the 5th Circuit granted the state’s motion for an emergency stay of the injunction ordered by the U.S. District Court in Austin earlier in the week. 

The ruling from the district judge, Lee Yeakel (a 2003 appointee of President Bush), found part of the contentious abortion bill to be unconstitutional. Specifically, on Monday afternoon, Judge Yeakel struck down the provision that required doctors who perform abortions to have admitting privileges at nearby hospitals and ordered an injunction, which would prevent that part of the law from going into effect on Tuesday, as scheduled. 

Attorney General Greg Abbott immediately filed an appeal of the district court’s ruling, which was expected. Less expected was that he’d file an emergency motion to stay the injunction, in an attempt to allow the law to go into effect immediately. The 5th Circuit has jurisdiction over both the appeal and the motion—and the court’s response to the latter offers a pretty strong indication of how they’ll rule on the former.

Emergency Stay Granted
A panel of three judges from the 5th Circuit (not, it should be noted, the court in its entirety) issued an opinion last night that granted the emergency stay of the injunction. This is not a ruling on the bill itself; this just allows the law to go into effect until that ruling is made, which will happen in January. (The judges, Priscilla R. Owen, Jennifer Walker Elrod, and Catharina Haynes, are all George W. Bush appointees.) 

What this means is that, effective immediately, the new abortion restrictions in Texas that were set to go into effect this week are now law. Doctors who perform abortions in Texas must have admitting privileges at nearby hospitals—something supporters of the bill say makes women safer, while opponents point out that those privileges are very difficult to obtain. (It’s worth noting that, in the event of complications resulting from an abortion, someone whose operation was performed by a doctor without admitting privileges can still be taken to a hospital and treated by a different doctor.) 

Regardless of whether or not admitting privileges actually protect women’s health, the effect of this provision becoming law is that 13 of the remaining 32 clinics in Texas can no longer offer abortion services to clients. 

What Happens Next
This, remember, is not a ruling on the bill, just a ruling on the emergency motion to stay the injunction until that ruling goes into effect. That sounds complicated, but what it really means is that the court ordered that the law, which has thus far been found unconstitutional, should go into effect until they’ve had a chance to hear the appeal.

The basis for that decision is laid out in a 20-page opinion from the 5th Circuit. Mostly, the court’s opinion is determined by the criteria of “whether the stay applicant has made a strong showing that he is likely to succeed on the merits,” which the court finds that the state has. The document goes on to disagree with much of what Judge Yeakel wrote in his opinion. For example:

The district court’s conclusion that a State has no rational basis for requiring physicians who perform abortions to have admitting privileges at a hospital is but one step removed from repudiating the longstanding recognition by the Supreme Court that a State may constitutionally require that only a physician may perform an abortion

While arguments in the appeal itself won’t be heard until January, the opinion offers some hints to opponents of the law that things are probably not going to go their way when the court does ultimately make its ruling.

For the clinics that are closing now, that means that three months is really the minimum that they’ll be unable to provide services. 

Further Down The Line
There’s little that the supporters and opponents of HB2 agree on. This summer’s contentious debates should be evidence enough of that. But one thing that everyone seems to feel confident in is that this isn’t going to stop at the 5th Circuit Court of Appeals. Last night, Amy Hagstrom-Miller, founder of Whole Women’s Health—one of the larger for-profit abortion providers in Texas, with locations in multiple cities—appeared on The Rachel Maddow Show and expressed her conviction that this will go all the way to the Supreme Court. That echoed a sentiment from the bill’s author in the House, Jodie Laubenberg, from July.

In the meantime, the bill’s opponents have limited options. They could potentially file a motion to appeal yesterday’s decision to all the judges of the 5th Circuit, sitting en banc, but that hasn’t happened yet. It’s also possible that the makeup of the 5th Circuit could change at some point between now and January. That court has had two vacancies for over a year, which Carl Tobias of The Hill says are a result of a Republican-backed bottleneck on the Senate floor. In the meantime, the 5th Circuit—which, according to the Associated Press, “has a reputation for being a corporation-friendly, pro-prosecutor foe of death penalty appeals and abortion rights advocates”—has given a strong indication of where it’s leaning right now, and why the law’s opponents are willing to take their chances with the Supreme Court. 

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